01a02050
02-13-2001
Mary L. Black, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Mary L. Black v. Department of Transportation (Federal Aviation
Administration)
01A02050
02-13-01
.
Mary L. Black,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation (Federal Aviation Administration),
Agency.
Appeal No. 01A02050
Agency Nos. 4-97-1046; 4-97-1062
Hearing Nos. 106-98-8252X; 160-98-8238X
DECISION
On January 5, 2000, Mary L. Black (hereinafter referred to as complainant)
filed a timely appeal from the December 3, 1999, final order of
the Department of Transportation (Federal Aviation Administration)
(hereinafter referred to as the agency) concerning her complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., and the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. � 621
et seq. The appeal is timely filed (see 29 C.F.R. � 1614.402(a))<1>
and is accepted in accordance with 29 C.F.R. � 1614.405. For the reasons
that follow, the agency's decision is AFFIRMED.
The issue presented in this appeal is whether the complainant has proven,
by a preponderance of the evidence, that the agency discriminated against
her on the bases of race (black), age (DOB 6-19-49), and reprisal with
regard to two disciplinary matters, a dispute with a co-worker, and a
non-selection in 1996-1997.
Complainant filed formal complaints on January 14, 1997, and April 1,
1997. Following investigations, complainant requested a hearing before
an EEOC Administrative Judge (AJ), and the complaints were consolidated
for hearing. The AJ issued her decision on November 23, 1999, finding no
discrimination; the agency agreed with the AJ, and this appeal followed.
Complainant worked as a Secretary in the Operations Branch of the
Airway Facilities Division in Queens, New York. Complainant's immediate
supervisor was the Assistant Branch Manager (S1), and her second-level
supervisor was the Branch Manager (S2). In her complaints, she claimed
discrimination when (a) in December 1997, she was harassed when agency
management failed to resolve a disagreement between her and a co-worker;
(b) in February 1997, she received a letter of warning (LOW) when she
was away from work for an extended period of time; (c) in September
1997, she received a reprimand for failure to follow a direct order;
and (d) in the fall of 1997, she was found ineligible for the position
of Administrative Officer and not properly notified.
The AJ found that, with regard to (a), the agency's action concerning
the dispute in question, including the subsequent investigation by
S1 and S2,<2> did not rise to the level of illegal harassment. As to
the disciplinary actions in (b) and (c), the AJ found that the LOW was
issued when complainant remained away from the office without approved
leave following an agency event and that the reprimand was issued when
complainant ignored S2's direct order to sit at her work station.
The AJ found that, for (a)-(c), the agency articulated legitimate,
nondiscriminatory reasons for its actions and that complainant did not
demonstrate pretext.
With regard to (d), the AJ found that complainant applied for, but was
found ineligible for, the position of Administrative Officer and that
the personnel office, due to a clerical error, failed to send her notice
of her ineligibility. The Personnel Specialist (PS) who reviewed her
application stated that complainant's record did not show that she had a
full year of specialized budget and personnel experience and disqualified
her for considertation. The AJ found that complainant presented no
evidence, other than her own speculation, that the PS's determination of
her eligibility status was improper or based on illegal considerations
of discrimination, nor did complainant support her contention that the
PS conspired with S1 and S2 to eliminate her from competition.<3>
In her appeal statement, complainant stated that her co-worker's
action was intimidating to her, that she provided her supervisor an
explanation for her absence, and that she returned to her work station
when S2 requested her to do so. As to the eligibility determination, she
restates her contention that the PS purposely evaluated her application
in order to disqualify her.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an Administrative Judge will be upheld if supported by substantial
evidence in the record. Substantial evidence is defined as �such
relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.� Universal Camera Corp. v. National Labor Relations Board,
340 U.S. 474, 477 (1951) (citation omitted). A finding regarding
whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).
As set out by the AJ, claims of disparate treatment, such as
complainant's, are examined under the tripartite analysis first enunciated
in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Loeb
v. Textron, Inc., 600 F.2d 1003 (1979); Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976). When the agency articulated legitimate,
nondiscriminatory reasons for its actions, the burden returned to
complainant to demonstrate by a preponderance of the evidence that the
agency's reasons were a pretext for discrimination, i.e., complainant
must persuade the fact finder by preponderant evidence that the stated
reasons were not the true reasons or that the agency acted on the basis
of a prohibited factor. Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993); U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711,
715-716 (1983).
In the instant proceeding, complainant has presented no probative evidence
in support of her claims. After an independent review of the record,
including consideration of all statements submitted on appeal, it is the
decision of the Commission that the AJ accurately stated the facts and
correctly applied the pertinent principles of law and that her decision
is supported by substantial evidence in the record.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the office of federal operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___02-13-01_______________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2S1 and S2 determined that both complainant and the co-worker acted
improperly and suggested they both apologize. According to the record,
the co-worker was willing to apologize, but complainant was not.
3We note that the record contains a letter dated August 21, 1997,
stating that a second subsequent review by another PS found complainant
qualified. Consequently, per the agency's merit promotion plan,
complainant received priority consideration for the next appropriate
vacancy which she desired and for which she qualified. Nevertheless,
as stated below, complainant did not demonstrate that the agency's
explanation for her initial disqualification was pretextual, that is,
based on discriminatory factors or considerations.